Dekraai Case: Senior Deputy D.A. Says He May Have Made a Mistake Before the Grand Jury

By PAUL ANDERSON
City News Service

An Orange County senior deputy district attorney today acknowledged during a hearing alleging the rights of multiple defendants were violated while in custody, including convicted mass killer Scott Dekraai, that he may have made a procedural error while presenting a case to a grand jury, but denied it was part of a conspiracy.

Senior Deputy District Attorney Jim Mendelson testified that he withheld from defense attorneys and a grand jury that he had evidence that a defendant linked to a white supremacist gang was actually an assassination target and an attempt on his life was made in a prison yard by that same gang.

The evidence, which came in the form of a proffer from another defendant in the gang, could have been used to impeach the testimony of jailhouse informants, Dekraai's attorney is arguing.

Mendelson said he did not think the information was "relevant," because the grand jury was not being told the defendant belonged the white supremacist gang. Still, the prosecutor said in light of the ongoing hearing regarding allegations from a 500-plus page legal motion filed earlier this year in the Dekraai case that perhaps he made a mistake.

"I had it, but I didn't present it to the grand jury," Mendelson said. "It's on me... But it was not part of any conspiracy with the sheriff or the District Attorney's Office."

Mendelson said he could also argue that he did not make a legal error in the case he presented to the grand jury.

The prosecutor was the last witness to testify in the hearing, which started in mid-March and has featured more than 30 witnesses, including sheriff's investigators, prosecutors and, most remarkably, a current Orange County Superior Court judge. It all started with one confidential informant gathering evidence on Dekraai while they were in neighboring cells after the killer gunned down eight people and nearly murdered a ninth in a Seal Beach beauty salon.

The jailhouse snitch allegedly recorded Dekraai bragging about the killings, so prosecutors wanted to use the evidence against the defendant in the penalty phase of his capital case. During the evidentiary hearing, prosecutors announced they no longer wanted to use the information against Dekraai.

Orange County Superior Court Judge Thomas Goethals allowed Dekraai's attorney, Scott Sanders of the Orange County Public Defender's Office, to question investigators and prosecutors on claims that there was systemic abuse of the handling of jailhouse informants that led to the illegal withholding of evidence to defense attorneys and the questioning of defendants even after they had established an attorney-client privilege, a Sixth Amendment violation.

The hearing last week led prosecutors to vacate a murder conviction against one principal figure in Sanders' lengthy motion. Prosecutors intend to seek another trial in the case against Leonel Vega.

On Thursday, Orange County Superior court Judge Terri Flynn-Peister, a former federal prosecutor, testified that she wrote a memo providing guidance to investigators on the legal use of jailhouse informants. Otherwise, she testified, she did not get much involved in the handling of jailhouse informants.

That contradicted the testimony of sheriff's Deputy Seth Tunstall, who said Flynn-Peister instructed him to only turn over four of 196 pages of notes from informant Oscar Moriel to Vega's defense attorney. Tunstall repeated that testimony today.

Tunstall recalled there was concern that Moriel's status as an informant could get out and jeopardize his life. Also, Flynn-Peister did not want any notes Moriel took on the Mexican Mafia that pertained to federal cases she was overseeing to be given to Vega's defense attorney, Tunstall testified.

"She gave authorization to release just the four pages for trial," Tunstall said.

Last week, Goethals directly asked Flynn-Peister about the issue.

"Do you ever recall reviewing Mr. Moriel's notes in any quantity with Deputy Tunstall or any member of law enforcement?... (Or tell) state prosecutors (release) these four pages and nothing else?" Goethals asked the judge, who replied, "No."

"As you answer that question readily is it possible there's a failure of memory?" Goethals added.

"No," Flynn-Peister replied.

"Did you ever direct a case agent not to deliver discovery to a prosecutor in this case?" Goethals asked.

"No," Flynn-Peister testified.

Goethals remarked today, given the "dramatically inconsistent" testimony, that, "We have, in the most literal sense, a real he-said-she-said situation."

Goethals will hear arguments from both sides on July 25 and issue a ruling within a week after that, he said.

Sanders is seeking to have Goethals punish prosecutors by taking the death penalty away as an option for Dekraai or having the case taken away from the Orange County District Attorney's Office in favor of the Attorney General's Office.